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Unmarried Fathers and Parental Responsibility: a Case for Reform? Feminist Legal Studies, 9 (2) Kent Academic Repository Full text document (pdf) Citation for published version Sheldon, Sally (2001) Unmarried Fathers and Parental Responsibility: a Case for Reform? Feminist Legal Studies, 9 (2). pp. 93-118. ISSN 0966-3622. DOI https://doi.org/10.1023/A:1016701220289 Link to record in KAR https://kar.kent.ac.uk/1452/ Document Version UNSPECIFIED Copyright & reuse Content in the Kent Academic Repository is made available for research purposes. Unless otherwise stated all content is protected by copyright and in the absence of an open licence (eg Creative Commons), permissions for further reuse of content should be sought from the publisher, author or other copyright holder. Versions of research The version in the Kent Academic Repository may differ from the final published version. Users are advised to check http://kar.kent.ac.uk for the status of the paper. Users should always cite the published version of record. Enquiries For any further enquiries regarding the licence status of this document, please contact: [email protected] If you believe this document infringes copyright then please contact the KAR admin team with the take-down information provided at http://kar.kent.ac.uk/contact.html Kent Academic Repository – http://kar.kent.ac.uk Unmarried Fathers and Parental Responsibility: A Case for Reform? Sally Sheldon Feminist Legal Studies, 9 (2) pp 93 – 118 2001 Post Refereed Version – Not Published Version Abstract: Following a Consultation exercise conducted by the Lord Chancellor's Department, the British Government has announced its intention to amend the Children Act 1989 so that the unmarried father who jointly registers the birth with the mother will acquire parental responsibility automatically. In this paper, I draw on the responses made to the L.C.D. Consultation, in order critically to evaluate the arguments for and against reform. A poverty of relevant empirical research makes it impossible to reach a properly informed view on the positive or negative impacts of implementing the proposal. However, the principled arguments: that unmarried fathers and their children are subject to discrimination, or that it is unfair for men to pay child support, yet have no automatic rights with regard to their children, are ultimately unconvincing. I also attempt a more explicitly sociological exploration of the Consultation and reform process, focusing on what it can tell us about evolving social attitudes towards the statuses of 'father' and 'family' and how they should be valued and protected. equality, families, family law, fatherhood, parent with care, parental Keywords: responsibility, parental rights, unmarried fathers Following a Consultation exercise conducted by the Lord Chancellor's Department (L.C.D.), the U.K. Government has recently announced its intention to reform the law relating to parental responsibility (P.R.) so that the unmarried father who jointly registers the birth with the mother will acquire P.R. automatically.1 This represents an extension of the provisions of the Children Act 1989 which currently foresee automatic acquisition of P.R. only by the mother of a child and, where she is married, by her husband. As the law currently stands, the unmarried father can obtain P.R. 1 See clause 91 of the Adoption and Children Bill, introduced to the House of Commons on 15 March 2001. See also L.C.D. (1998) for preparatory discussion and Hansard 9 Dec 99 398w for the announcement of the reform. Published version available in ‘Feminist Legal Studies, 9 (2) pp 93 – 118’ - 1 - Kent Academic Repository – http://kar.kent.ac.uk only by agreement with the mother or by court order. The reform will relate only to births registered after the new law comes into effect. This paper seeks both critically to assess the case for reform and, more ambitiously, to understand the proposal within a broader social and political context. In order to do so, I will draw extensively on the responses submitted to the L.C.D. Consultation which preceded the decision to reform. These responses provide an invaluable resource. First they have obvious, though non-quantifiable, policy significance by virtue of any impact which they may have had on the L.C.D.'s eventual recommendations for reform. Secondly, the responses provide an interesting snapshot of a broad range of views held in the U.K. at this particular moment in time (both on the narrow question under discussion and on broader issues of paternal rights). Thirdly and finally, the responses also constitute a rich and unique resource, pooling the knowledge and experience of an extensive array of interested pressure groups, individuals particularly affected by the law and professionals and academics who work in this area. I start by outlining the current state of the law and providing a brief description of the Consultation process. I then attempt an overview of how the proposed reform can be located within broader thinking on fatherhood and the family before going on to assess the arguments for reform. I conclude with an assessment of whether the case for reform has been made. Published version available in ‘Feminist Legal Studies, 9 (2) pp 93 – 118’ - 2 - Kent Academic Repository – http://kar.kent.ac.uk BACKGROUND TO REFORM The Law P.R. accords “all the rights, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and his property".2 This includes the right to administer a child's property and to take important decisions regarding her upbringing including where she will live, how she should be educated, in what religion she should be raised, and what non-essential medical treatment she should receive.3 P.R. also accords the right to be heard regarding a child's proposed adoption or emigration, and to appoint a guardian for her following one's death.4 A father without P.R. is not thereby prevented from applying for residence or contact orders, but in practice it seems that P.R. is often viewed as a first step to obtaining these rights.5 Further, it is likely that the Government may rely on P.R. in the future in other aspects of family policy: for example, possession of P.R. is one criterion to be used in determining who is eligible to apply for parental leave.6 Even from this brief 2 s. 3(1) Children Act 1989. 3 Whilst Eekelaar and McLean (1997, p. 37) have argued that a father who is in a practical position to make medical decisions has a de facto if not a de jure authority to make them, the British Medical Association advises its members only to accept consent from a carer with P.R. (B.M.A., response to L.C.D.). It seems that P.R. is also likely to play an important role in decision making regarding the use and treatment of a child’s body after its death. The enhanced consent requirements for the taking and retention of organ and tissues in post-mortem examination of dead children suggested by the Chief Medical Officer in the wake of the Alder Hey scandal provide that consent should be sought from ‘those with parental responsibility’ (Department of Health, 2001, p. 38). 4 See generally Bromley's Family Law (1998, pp. 347-76); Eekelaar (1991), Eekelaar and McLean (1997, pp. 35-7), Barton and Douglas (1995, p. 114) on the rights included within P.R. 5 Lack of P.R. may also pose problems for unmarried fathers who apply for an abducted child to be returned to the U.K. under the Hague Convention on child abduction (L.C.D., 1998, para. 50). 6 The Maternity and Parental Leave etc Regulations 1999 (S.I. 1999 No. 3312), regulation 13. The L.C.D. proposal would have no real impact in terms of parental leave. Under regulation 13, both those who possess P.R. and anyone recognised as a parent on the birth certificate are entitled to Published version available in ‘Feminist Legal Studies, 9 (2) pp 93 – 118’ - 3 - Kent Academic Repository – http://kar.kent.ac.uk description, it can be seen that whilst the intention behind the Children Act may have been one of encouraging greater parental responsibility, in practice the impact of the provisions is largely to allocate parental rights (whether exercisable against the state or the other parent) to make certain decisions with regard to the upbringing of children. P.R. does not give children (or anyone else) enforceable duties against P.R. holders; whilst a non-resident parent can be forced to make financial provision for offspring, it is not possible to enforce the exercise of any positive duties under P.R.7 The practical significance of P.R. will obviously be greater when parents are separated and less likely to be in agreement over significant decisions. Of particular importance is the extent to which a non-resident parent's possession of P.R. imposes duties on the parent with care to consult. The Law Commission believed that whether or not parents are living together, to impose any legal duty of consultation would be “both unworkable and undesirable" (1988, para. 2.10) and this viewpoint was reflected in the Children Act 1989.8 However, the courts have held that a mother with P.R. must be consulted about important educational decisions such as a change of leave in order to care for a child provided other conditions are fulfilled. 7 The only duties that a person with P.R. has are expressed negatively: the child must not suffer significant harm, be neglected, abused, not educated and so on. Eekelaar (1991) has noted that the idea of P.R.
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